EXHIBIT 10.19
MOLECULAR DEVICES CORPORATION
KEY EMPLOYEE AGREEMENT
for
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
This Employment Agreement ("Agreement") is entered into as of the 11th
day of March, 1998, by and between ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ("Executive") and Molecular
Devices Corporation, a Delaware corporation (the "Company").
Whereas, the Company desires to employ Executive to provide personal
services to the Company, and wishes to provide Executive with certain
compensation and benefits in return for his services; and
Whereas, Executive wishes to be employed by the Company and provide
personal services to the Company in return for certain compensation and
benefits;
Now, Therefore, in consideration of the mutual promises and covenants
contained herein, it is hereby agreed by and between the parties hereto as
follows:
1. Employment by the Company.
1.1 Subject to terms set forth herein, the Company agrees to
employ Executive in the position of President and Chief Executive Officer
("CEO") of the Company and Executive hereby accepts such employment effective as
of March 30, 1998. During the term of his employment with the Company, Executive
will devote his best efforts and substantially all of his business time and
attention (except for vacation periods as set forth herein and reasonable
periods of illness or other incapacities permitted by the Company's general
employment policies) to the business of the Company.
1.2 Executive shall serve in an executive capacity and shall
perform such duties as are customarily associated with his then current title,
consistent with the Bylaws of the Company and as required by the Company's Board
of Directors (the "Board").
1.3 The employment relationship between the parties shall also
be governed by the general employment policies and practices of the Company,
including those relating to protection of confidential information and
assignment of inventions, except that when the terms of this Agreement differ
from or are in conflict with the Company's general employment policies or
practices, this Agreement shall control. In addition, as an executive officer of
the Company Executive will be covered by the Company's directors and officers
liability insurance coverage, as in effect from time to time, as well as the
Company's bylaw indemnification and indemnity agreement for executive officers
and directors.
2. Board of Directors.
2.1 Board of Directors. The Company shall use its best efforts
to elect Executive to the Board for so long as Executive holds the position of
President and Chief Executive Officer of the Company. Executive agrees to serve
as a director if elected by the shareholders and the Board, as the case may be.
3. Compensation.
3.1 Salary. Executive shall receive for services to be
rendered hereunder an annualized base salary of $280,000, payable according to
the Company's regular payroll schedule.
3.2 Signing Bonus. Upon his first performance of services
under this Agreement, Executive shall receive a one time payment of $150,000,
minus standard payroll withholdings and deductions ("Signing Bonus"). If
Executive voluntarily terminates his employment with Company within his first
year of employment, Executive shall repay the gross amount of the Signing Bonus
to the Company.
3.3 Performance Bonus. Executive will be eligible for a
discretionary performance bonus of up to 50% of base salary, earned under the
following conditions, if Executive achieves the goals established in agreement
with the Board. The Board shall determine, in its sole discretion, whether any
or all of the goals have been achieved and conditions have been met, and if so,
the amount of the bonus.
(a) Company Corporate Financial Goals. The Company
must meet or exceed its planned profit objectives for the bonus year; and
(b) Executive's Performance. Executive must
demonstrate performance equal to or above that required to meet the ordinary
expectations of his job position, as determined by the Board in its sole
discretion; and
(c) Achievement of Goals. Executive shall achieve
each of the goals agreed upon with the Board. Goals will be set in the following
areas: (1) product development schedule; (2) product introduction schedule; and
(d) Active Employment. Executive must remain an
active employee through the end of the bonus year. Executive forfeits any bonus
for which he would otherwise be eligible, if his employment terminates for any
reason before the end of the bonus year. No prorated bonus can be earned.
3.4 Standard Company Benefits. Executive shall be entitled to
all rights and benefits for which he is eligible under the terms and conditions
of the standard Company benefits and compensation practices which may be in
effect from time to time and provided by the Company to its employees generally.
3.5 Car Allowance. The Company will pay Executive, in lieu of
providing a Company-leased car, an allowance of $1,000 per month, to cover
transportation expenses in the performance of his job duties.
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3.6 Administrative Expenses. The Company will pay Executive
for administrative expenses, such as tax preparation, which Executive incurs, up
to a maximum of $5,000 per year.
3.7 Relocation Expenses. Executive will receive relocation
expenses to move his household from New York to California provided that such
relocation occurs prior to December 31, 1998. The Company will pay the lower of
two submitted bids, pursuant to the Relocation Agreement attached hereto as
Exhibit A.
3.8 Commuting Expenses. The Company will provide Executive or
his immediate family with one round trip per week between California and New
York, for up to six months after the start of Executive's employment.
3.9 Taxation. Any amount received by the Executive for
administrative expenses, car allowance, relocation expenses or commuting
expenses that is required to be so treated will be treated as taxable income and
reflected on the Company's Form W-2 report.
3.10 Compensation Review. The Board will annually review
Executive's salary, performance bonus, and incentive stock options to ensure
that they are commensurate with work performed. In addition, the Company will
annually review and mutually establish with Executive the goals to be used in
evaluating Executive's performance bonus.
4. Stock.
4.1 Stock Options. The Board will grant Executive a
nonstatutory stock option to purchase one hundred seventy thousand (170,000)
shares of the Company's Common Stock under the Company's 1995 Stock Option Plan
(the "Plan"). The exercise price of such option will be the fair market value of
the Common Stock on the date on which Executive begins employment with the
Company (the "Employment Date"). The option will vest over five years, with
thirty four thousand (34,000) shares vesting on the first anniversary of
Employmenet Date, and eight thousand five hundred (8,500) shares vesting every
June 30, September 30, December 30, and March 30 thereafter. Vesting ceases if
Executive's employment terminates at any time for any reason, with the following
exceptions. (a) Executive is retained by the Company in a post-employment
consulting agreement as described in Section 8 below, providing for additional
year of vesting; and (b) if a transaction described in Section 10(b) of the Plan
occurs, and Executive is either demoted or terminated without cause (as defined
in Section 7.2 below) within two years following such transaction, then vesting
of the remaining unvested options will accelerate, such that Executive will be
vested in options with respect to a ▇▇▇▇ of one hundred seventy thousand
(170,000) shares of the Company's Common Stock. For purposes of this Agreement,
"demoted" means that, without Executive's consent, a material reduction in or
modification to, Executive's base salary, duties and responsibilities, title, or
reporting relationship has occurred.
4.2 Stock Grant. The Board will grant Executive an aggregate
of thirty thousand (30,000) shares of the Company's Common Stock, subject to
applicable securities law restrictions, over two years. Three thousand seven
hundred and fifty (3,750) shares will be granted following the completion of
each quarter of service with the Company in an executive capacity, on June 30,
1998 and 1999; September 30, 1998 and 1999; December 30, 1998 and 1999; and
March 30, 1999 and 2000. Executive will bear all tax responsibilities for these
grants and will make arrangements with the Company to ensure payment of taxes
and compliance with tax withholdings. In lieu of Executive's having to sell
stock in order to make any of the required tax payments, the Company agrees to
lend him, for up to two (2) years, at the minimum interest rate required by the
taxing authorities to avoid the imputation of taxes, an amount equal to the
Executive's state and federal tax withholding obligation arising from the stock
grant, any such loans to be secured by Executive's stock. Granting ceases if
Executive's employment terminates at any time for any reason, with the following
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exceptions. If a transaction described in Section 10(b) of the Plan occurs and
Executive is either demoted or terminated without cause (as defined in Section
7.2 below) within two years following such transaction, granting of the
remaining ungranted shares will accelerate such that Executive will be granted a
total of thirty thousand (30,000) shares of the Company's Common Stock. Upon
granting, each individual grant will be fully earned and vested.
5. Proprietary Information Obligations.
5.1 Agreement. Executive agrees to execute and abide by the
Proprietary Information and Inventions Agreement attached hereto as Exhibit B.
5.2 Remedies. Executive's duties under the Proprietary
Information and Inventions Agreement shall survive termination of his employment
with the Company. Executive acknowledges that a remedy at law for any breach or
threatened breach by him of the provisions of the Proprietary Information and
Inventions Agreement would be inadequate, and he therefore agrees that the
Company shall be entitled to injunctive relief in case of any such breach or
threatened breach.
6. Outside Activities.
6.1 Except with the prior written consent of the Company's
Board of Directors, Executive will not during the term of this Agreement
undertake or engage in any other employment, occupation or business enterprise,
other than ones in which Executive is a passive investor within the limitations
set forth in Section 6.3 below. Executive may engage in civic and not-for-profit
activities so long as such activities do not materially interfere with the
performance of his duties hereunder.
6.2 Except as permitted by Section 6.3, Executive agrees not
to acquire, assume or participate in, directly or indirectly, any position,
investment or interest known by him to be adverse or antagonistic to the
Company, its business or prospects, financial or otherwise.
6.3 During the term of his employment by the Company, except
on behalf of the Company, Executive will not directly or indirectly, whether as
an officer, director, stockholder, partner, proprietor, associate,
representative, consultant, or in any
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capacity whatsoever engage in, become financially interested in, be employed by
or have any business connection with any other person, corporation, firm,
partnership or other entity whatsoever which were known by him to compete
directly with the Company, throughout the world, in any line of business engaged
in (or planned to be engaged in) by the Company; provided, however, that
anything above to the contrary notwithstanding, he may own, as a passive
investor, securities of any competitor corporation, so long as his direct
holdings in any one such corporation shall not in the aggregate constitute more
than 1% of the voting stock of such corporation.
7. Termination Of Employment.
7.1 Termination Without Cause Or With Good Reason.
(a) The Company shall have the right to terminate
Executive's employment with the Company at any time without cause.
(b) In the event Executive's employment is terminated
without cause, or in the event Executive resigns for Good Reason (defined as the
Company's having appointed another person as Chief Executive Officer), the
Company shall provide Executive with the following: (i) a one-year consulting
agreement as described in Sections 8 and 9 below; and (ii) outplacement
services.
7.2 Termination for Cause.
(a) The Company shall have the right to terminate
Executive's employment with the Company at any time for cause.
(b) "Cause" for termination shall be determined by
the Company based on the Board's reasonable belief that one or more of the
following has occurred: (a) Executive's indictment or conviction of any felony
or of any crime involving dishonesty; (b) Executive's participation in any fraud
against the Company; (c) breach of Executive's duties to the Company, including
persistent unsatisfactory performance of job duties, provided that the Company
has provided advance written notice to Executive for at least thirty (30) days
and Executive has not cured such breach to the satisfaction of the Board within
said 30-day period; (d) Executive's intentional damage to any property of the
Company; or (e) conduct by Executive which in the good faith and reasonable
determination of the Board demonstrates gross unfitness to serve, provided that
the Company has provided advance written notice to Executive for at least thirty
(30) days and Executive has not cured such breach to the satisfaction of the
Board within said 30-day period.
(c) In the event Executive's employment is terminated
at any time with cause, he will not be entitled to severance pay, pay in lieu of
notice or any other such compensation.
7.3 Voluntary or Mutual Termination.
(a) Executive may voluntarily terminate his
employment with the Company at any time, after which no further compensation
will be paid to Executive.
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(b) In the event Executive voluntarily terminates his
employment, he will not be entitled to severance pay, pay in lieu of notice or
any other such compensation.
8. Post-Employment Consultation.
Upon the termination of Executive's employment with the
Company pursuant to Section 7.1(b), the Company shall retain Executive as a
consultant to be available to render consulting services in Executive's area of
expertise or special competence for one year ("Consulting Period"), for up to
ten (10) hours each month, for which the Company shall pay Executive Executive's
monthly base salary, whether or not Executive shall be called upon to render any
services in any such month. During the Consulting Period, Executive's stock
options and stock grant will continue to vest at the rate in effect at the time
of termination. Vesting of stock options and the stock grant will cease at the
end of the Consulting Period. Any out-of-pocket expenses which Executive's
consulting activities for the Company may require will be reimbursed against
receipts and vouchers therefor in accordance with the Company's policies in
force from time to time.
9. Post-Employment Activities.
If the Company retains Executive as a consultant pursuant to
Section 8 above, then the following restrictions shall apply so long as the
Company retains Executive as a consultant:
9.1 Absent the Company's prior written approval upon
instructions of its Board of Directors, Executive will not directly or
indirectly engage in activities (similar or reasonably related to those in which
Executive shall have engaged hereunder during the two years immediately
preceding the termination of Executive's employment with the Company) nor render
services (similar or reasonably related to those which Executive shall have
rendered hereunder during such two years) in either case to any firm or business
organization which directly competes with the Company in any line of business
engaged in (or planed to be engaged in) by the Company, whether now existing or
hereafter established, nor shall Executive engage in such activities nor render
such services to any other person or entity engaged or about to become engaged
in such activities to, for or on behalf of any such firm or business
organization, nor shall Executive entice, induce or encourage any of the
company's other employees to engage in any activity which, were it done by
Executive, would violate any provision of the Proprietary Information Agreement
or this Section 9.
9.2 The Company upon instruction of its Board of Directors may
give Executive written approval(s) to engage personally in any activity or
render services referred to in Section 9.1 if it secures written assurances
(satisfactory to the Company and its counsel) from Executive and from the
prospective employer(s) that the integrity of the Proprietary Information
Agreement will not in any way be jeopardized by such activities, provided the
burden of so establishing the foregoing to the satisfaction of the Company and
said counsel shall be upon Executive and his prospective employer(s).
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9.3 The provisions of Section 6.3 shall be applicable to
Executive and Executive shall comply therewith. As applied to such consulting
period, the term "any line of business engaged in (or planned to be engaged in)
by the Company", as used in Section 6.3, shall be applied as at the date of
termination of Executive's employment.
10. Noninterference.
For two (2) years immediately following the termination of
employment hereunder, Executive agrees not to interfere with the business of the
Company by:
(a) soliciting, attempting to solicit, inducing, or otherwise
causing any employee of the Company to terminate his or her employment in order
to become an employee, consultant or independent contractor to or for any
competitor of the Company; or
(b) directly or indirectly soliciting the business of any
customer of the Company, for products or services competitive with Molecular
Devices products or services, which customer at the time of termination or one
year immediately prior thereto was listed on the Company's customer list.
11. General Provisions.
11.1 Notices. Any notices provided hereunder must be in
writing and shall be deemed effective upon the earlier of personal delivery
(including personal delivery by fax) or the third day after mailing by first
class mail, to the Company at its primary office location and to Executive at
his address as listed on the Company payroll.
11.2 Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be invalid,
illegal or unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or any other jurisdiction, but this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provisions had never been contained herein.
11.3 Waiver. If either party should waive any breach of any
provisions of this Agreement, he or it shall not thereby be deemed to have
waived any preceding or succeeding breach of the same or any other provision of
this Agreement.
11.4 Complete Agreement. This Agreement and its Exhibits,
constitute the entire agreement between Executive and the Company and it is the
complete, final, and exclusive embodiment of their agreement with regard to this
subject matter. It is entered into without reliance on any promise or
representation other than those expressly contained herein, and it cannot be
modified or amended except in a writing approved by the Board.
11.5 Counterparts. This Agreement may be executed in separate
counterparts, any one of which need not contain signatures of more than one
party, but all of which taken together will constitute one and the same
Agreement.
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11.6 Headings. The headings of the sections hereof are
inserted for convenience only and shall not be deemed to constitute a part
hereof nor to affect the meaning thereof.
11.7 Successors and Assigns. This Agreement is intended to
bind and inure to the benefit of and be enforceable by Executive and the
Company, and their respective successors, assigns, heirs, executors and
administrators, except that Executive may not assign any of his duties hereunder
and he may not assign any of his rights hereunder without the written consent of
the Company, which shall not be withheld unreasonably.
11.8 Choice of Law. All questions concerning the construction,
validity and interpretation of this Agreement will be governed by the law of the
State of California, without regard to conflict of laws principles.
In Witness Whereof, the parties have executed this Agreement on the day
and year first above written.
Molecular Devices Corporation
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------
Date: 3/6/98
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Accepted and agreed this 11th day of March, 1998.
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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EXHIBIT A
MOLECULAR DEVICES CORPORATION
RELOCATION AGREEMENT
Effective on March 11, 1998, I, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ hereby agree to the following
terms and conditions with respect to all relocation costs paid to me or on my
behalf by Molecular Devices Corporation in connection with my relocation from
New York to my new home in California (the "Relocation Costs"):
1. If I remain a full-time Molecular Devices Corporation employee for
twelve months from the effective date stated above, I shall have no
obligation to repay any of the Relocation Costs.
2. If my employment terminates within one year from the effective date, I
agree to repay to Molecular Devices Corporation a portion of the
Relocation Costs, or other amounts paid to federal or state tax
agencies as withholding, to be calculated as follows:
For each full month of full-time employment, Molecular Devices
Corporation will forgive 1/12 of my Relocation Costs. The
remaining unforgiven Relocation Costs are due and payable to
Molecular Devices on demand.
3. I understand that all reimbursements and allowances paid to me as
Relocation Costs, including amounts withheld as payroll deductions in
connection with my relocation must be included as a part of my gross
income and therefore may be subject to tax. If I am required under
paragraph 2 of this agreement to repay Relocation Costs to Molecular
Devices Corporation, I will repay the entire amount determined under
paragraph 2, and amounts withheld as payroll deductions.
4. I understand that nothing in this agreement assures me of a continuing
position with Molecular Devices Corporation, or in any way changes the
Molecular Devices Corporation's right to end the employment
relationship as it deems necessary.
5. If I am obligated under this agreement to repay Molecular Devices
Corporation for Relocation Costs, I hereby authorize Molecular Devices
Corporation to deduct the entire amount due from my final paycheck,
including from any vacation pay due.
6. Before submitting expenses for reimbursement as Relocation Costs, I
will inform Molecular Devices Corporation whether my spouse is eligible
for relocation benefits from another employer, and if so, the terms of
those benefits. If my spouse is eligible for any of the same relocation
benefits which the Molecular Devices Corporation has offered me, I will
only receive one-half of any such benefits from the Molecular Devices
Corporation.
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/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ 3/11/98
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▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ Date
EXHIBIT B
MOLECULAR DEVICES CORPORATION
EMPLOYEE PROPRIETARY INFORMATION
AND INVENTIONS AGREEMENT
In consideration of my employment or continued employment by Molecular
Devices Corporation (the "Company"), and the compensation now and hereafter paid
to me, I hereby agree as follows:
1. Nondisclosure
1.1 Recognition of Company's Rights; Nondisclosure. At all times during
my employment and thereafter, I will hold in strictest confidence and will not
disclose, use, lecture upon or publish any of the Company's Proprietary
Information (defined below), except as such disclosure, use or publication may
be required in connection with my work for the Company, or unless an officer of
the Company expressly authorizes such in writing. I will obtain Company's
written approval before publishing or submitting for publication any material
(written, verbal, or otherwise) that relates to my work at Company and/or
incorporates any Proprietary Information. I hereby assign to the Company any
rights I may have or acquire in such Proprietary Information and recognize that
all Proprietary Information shall be the sole property of the Company and its
assigns.
1.2 Proprietary Information. The term "Proprietary Information" shall
mean any and all confidential and/or proprietary knowledge, data or information
of the Company. By way of illustration but not limitation, "Proprietary
Information" includes (a) trade secrets, inventions, mask works, ideas,
processes, formulas, source and object codes, data, programs, other works of
authorship, know-how, improvements, discoveries, developments, designs and
techniques (hereinafter collectively referred to as "Inventions"); and (b)
tangible and intangible information relating to antibodies and other biological
materials, cell lines, samples of assay components, media and/or cell lines and
procedures and formulations for producing any such assay components, media
and/or cell lines, formulations, products, processes, know-how, designs,
formulas, methods, developmental or experimental work, clinical data,
improvements, discoveries, plans for research, new products, marketing and
selling, business plans, budgets and unpublished financial statements, licenses,
prices and costs, suppliers and customers, and information regarding the skills
and compensation of other employees of the Company. Notwithstanding the
foregoing, it is understood that, at all such times, I am free to use
information which is generally known in the trade or industry, which is not
gained as result of a breach of this Agreement, and my own, skill, knowledge,
know-how and experience to whatever extent and in whichever way I wish.
1.3 Third Party Information. I understand, in addition, that the
Company has received and in the future will receive from third parties
confidential or proprietary information ("Third Party Information") subject to a
duty on the Company's part to maintain the confidentiality of such information
and to use it only for certain limited purposes. During the term of my
employment and thereafter, I will hold Third Party Information in the strictest
confidence and will not disclose to anyone (other than Company personnel who
need to know such information in connection with their work for the Company) or
use, except in connection with my work for the Company, Third Party Information
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unless expressly authorized by an officer of the Company in writing.
1.4 No Improper Use of Information of Prior Employers and Others.
During my employment by the Company I will not improperly use or disclose any
confidential information or trade secrets, if any, of any former employer or any
other person to whom I have an obligation of confidentiality, and I will not
bring onto the premises of the Company any unpublished documents or any property
belonging to any former employer or any other person to whom I have an
obligation of confidentiality unless consented to in writing by that former
employer or person. I will use in the performance of my duties only information
which is generally known and used by persons with training and experience
comparable to my own, which is common knowledge in the industry or otherwise
legally in the public domain, or which is otherwise provided or developed by the
Company.
2. Assignment of Inventions.
2.1 Proprietary Rights. The term "Proprietary Rights" shall mean all
trade secret, patent, copyright, mask work and other intellectual property
rights throughout the world.
2.2 Prior Inventions. Inventions, if any, patented or unpatented, which
I made prior to the commencement of my employment with the Company are excluded
from the scope of this Agreement. To preclude any possible uncertainty, I have
set forth on Attachment B (Previous Inventions) attached hereto a complete list
of all Inventions that I have, alone or jointly with others, conceived,
developed or reduced to practice or caused to be conceived, developed or reduced
to practice prior to the commencement of my employment with the Company, that I
consider to be my property or the property of third parties and that I wish to
have excluded from the scope of this Agreement (collectively referred to as
"Prior Inventions"). If disclosure of any such Prior Invention would cause me to
violate any prior confidentiality agreement, I understand that I am not to list
such Prior Inventions in Attachment B but am only to disclose a cursory name for
each such invention, a listing of the party(ins) to whom it belongs and the fact
that full disclosure as to such inventions has not been made for that reason. A
space is provided on Attachment B for such purpose. If no such disclosure is
attached, I represent that there are no Prior Inventions. If, in the course of
my employment with the Company, I incorporate a Prior Invention into a Company
product, process or machine, the Company is hereby granted and shall have a
nonexclusive, royalty-free, irrevocable, perpetual, worldwide license (with
rights to sublicense through multiple tiers of sublicensees) to make, have made,
modify, use and sell such Prior Invention. Notwithstanding the foregoing, I
agree that I will not incorporate, or permit to be incorporated, Prior
Inventions in any Company Inventions without the Company's prior written
consent.
2.3 Assignment of Inventions. Subject to Sections 2.4, and 2.6, I
hereby assign and agree to assign in the future (when any such Inventions or
Proprietary Rights are first reduced to practice or first fixed in a tangible
medium, as applicable) to the Company all my right, title and interest in and to
any and all Inventions (and all Proprietary Rights with respect thereto) whether
or not patentable or registrable under copyright or similar statutes, made or
conceived or reduced to practice or learned by me, either alone or jointly with
others, during the period of my employment with the Company. Inventions assigned
to the Company, or to a third party as directed by the Company pursuant to this
Section 2, are hereinafter referred to as "Company Inventions."
2.4 Nonassignable Inventions. This Agreement does not apply to an
Invention which qualifies fully as a nonassignable Invention under Section 2870
of the California Labor Code (hereinafter "Section 2870"). I have reviewed the
notification on Attachment A (Limited
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Exclusion Notification) and agree that my signature acknowledges receipt of the
notification.
2.5 Obligation to Keep Company Informed. During the period of my
employment and for six (6) months after termination of my employment with the
Company, I will promptly disclose to the Company fully and in writing all
Inventions authored, conceived or reduced to practice by me, either alone or
jointly with others. In addition, I will promptly disclose to the Company all
patent applications filed by me or on my behalf within a year after termination
of employment. At the time of each such disclosure, I will advise the Company in
writing of any Inventions that I believe fully qualify for protection under
Section 2870; and I will at that time provide to the Company in writing all
evidence necessary to substantiate that belief. The Company will keep in
confidence and will not use for any purpose or disclose to third parties without
my consent any confidential information disclosed in writing to the Company
pursuant to this Agreement relating to Inventions that qualify fully for
protection under the provisions of Section 2870. I will preserve the
confidentiality of any Invention that does not fully qualify for protection
under Section 2870.
2.6 Government or Third Party. I also agree to assign all my right,
title and interest in and to any particular Company Invention to a third party,
including without limitation the United States, as directed by the Company.
2.7 Works for Hire. I acknowledge that all original works of authorship
which are made by me (solely or jointly with others) within the scope of my
employment and which are protectable by copyright are "works made for hire,"
pursuant to United States Copyright Act (17 U.S.C., Section 101).
2.8 Enforcement of Proprietary Rights. I will assist the Company in
every proper way to obtain, and from time to time enforce, United States and
foreign Proprietary Rights relating to Company Inventions in any and all
countries. To that end I will execute, verify and deliver such documents and
perform such other acts (including appearances as a witness) as the Company may
reasonably request for use in applying for, obtaining, perfecting, evidencing,
sustaining and enforcing such Proprietary Rights and the assignment thereof. In
addition, I will execute, verify and deliver assignments of such Proprietary
Rights to the Company or its designee. My obligation to assist the Company with
respect to Proprietary Rights relating to such Company Inventions in any and all
countries shall continue beyond the termination of my employment, but the
Company shall compensate me at a reasonable rate after my termination for the
time actually spent by me at the Company's request on such assistance.
In the event the Company is unable for any reason, after reasonable
effort, to secure my signature on any document needed in connection with the
actions specified in the preceding paragraph, I hereby irrevocably designate and
appoint the Company and its duly authorized officers and agents as my agent and
attorney in fact, which appointment is coupled with an interest, to act for and
in my behalf to execute, verify and file any such documents and to do all other
lawfully permitted acts to further the purposes of the preceding paragraph with
the same legal force and effect as if executed by me. I hereby waive and
quitclaim to the Company any and all claims, of any nature whatsoever, which I
now or may hereafter have for infringement of any Proprietary Rights assigned
hereunder to the Company.
3. Records. I agree to keep and maintain adequate and current records (in the
form of notes, sketches, drawings and in any other form that may be required by
the Company) of all Proprietary Information developed by me and all Inventions
made by me during the period of my employment at the Company, which records
3
shall be available to and remain the sole property of the Company at all times.
4. Additional Activities. I agree that during the period of my employment by the
Company I will not, without the Company's express written consent, engage in any
employment or business activity which is competitive with, or would otherwise
conflict with, my employment by the Company. I agree further that for the period
of my employment by the Company and for one (l) year after the date of
termination of my employment by the Company I will not induce any employee of
the Company to leave the employ of the Company.
5. No Conflicting Obligation. I represent that my performance of all the terms
of this Agreement and as an employee of the Company does not and will not breach
any agreement to keep in confidence information acquired by me in confidence or
in trust prior to my employment by the Company. I have not entered into, and I
agree I will not enter into, any agreement either written or oral in conflict
herewith.
6. Return of Company Documents. When I leave the employ of the Company, I will
deliver to the Company any and all drawings, notes, memoranda, specifications,
devices, formulas, and documents, together with all copies thereof, and any
other material containing or disclosing any Company Inventions, Third Party
Information or Proprietary Information of the Company. I further agree that any
property situated on the Company's premises and owned by the Company, including
disks and other storage media, filing cabinets or other work areas, is subject
to inspection by Company personnel at any time with or without notice. Prior to
leaving, I will cooperate with the Company in completing and signing the
Company's termination statement.
7. Legal and Equitable Remedies. Because my services are personal and unique and
because I may have access to and become acquainted with the Proprietary
Information of the Company, the Company shall have the right to enforce this
Agreement and any of its provisions by injunction, specific performance or other
equitable relief, without bond and without prejudice to any other rights and
remedies that the Company may have for a breach of this Agreement.
8. Notices. Any notices required or permitted hereunder shall be given to the
appropriate party at the address specified below or at such other address as the
party shall specify in writing. Such notice shall be deemed given upon personal
delivery to the appropriate address or if sent by certified or registered mail,
three (3) days after the date of mailing.
9. Notification of New Employer. In the event that I leave the employ of the
Company, I hereby consent to the notification of my new employer of my rights
and obligations under this Agreement.
10. General Provisions.
10.1 Governing Law; Consent to Personal Jurisdiction. This Agreement
will be governed by and construed according to the laws of the State of
California, as such laws are applied to agreements entered into and to be
performed entirely within California between California residents. I hereby
expressly consent to the personal jurisdiction of the state and federal courts
located in Santa ▇▇▇▇▇ County, California for any lawsuit filed there against me
by Company arising from or related to this Agreement.
10.2 Severability. In case any one or more of the provisions contained
in this Agreement shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect the other provisions of this Agreement, and this Agreement
shall be construed as if such invalid, illegal or unenforceable provision had
never been
4
contained herein. If moreover, any one or more of the provisions contained in
this Agreement shall for any reason be held to be excessively broad as to
duration, geographical scope, activity or subject, it shall be construed by
limiting and reducing it, so as to be enforceable to the extent compatible with
the applicable law as it shall then appear.
10.3 Successors and Assigns. This Agreement will be binding upon my
heirs, executors, administrators and other legal representatives and will be for
the benefit of the Company, its successors, and its assigns.
10.4 Survival. The provisions of this Agreement shall survive the
termination of my employment and the assignment of this Agreement by the Company
to any successor in interest or other assignee.
10.5 Employment. I agree and understand that nothing in this Agreement
shall confer any right with respect to continuation of employment by the
Company, nor shall it interfere in any way with my right or the Company's right
to terminate my employment at any time, with or without cause.
10.6 Waiver. No waiver by the Company of any breach of this Agreement
shall be a waiver of any preceding or succeeding breach. No waiver by the
Company of any right under this Agreement shall be construed as a waiver of any
other right. The Company shall not be required to give notice to enforce strict
adherence to all terms of this Agreement.
10.7 Entire Agreement. The obligations pursuant to Sections 1 and 2 of
this Agreement shall apply to any time during which I was previously employed,
or am in the future employed, by the Company as a consultant if no other
agreement governs nondisclosure and assignment of inventions during such period.
This Agreement is the final, complete and exclusive agreement of the parties
with respect to the subject matter hereof and supersedes and merges all prior
discussions between us. No modification of or amendment to this Agreement, nor
any waiver of any rights under this Agreement, will be effective unless in
writing and signed by the party to be charged. Any subsequent change or changes
in my duties, salary or compensation will not affect the validity or scope of
this Agreement.
This Agreement shall be effective as of the first day of my employment
with the Company, namely: March 30, 1998.
5
I have read this Agreement carefully and understand its terms. I have
completely filled out Exhibit B to this Agreement.
Dated: 3/11/98
--------------------------
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Accepted and Agreed To:
MOLECULAR DEVICES CORPORATION
By: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------------------
Title: President/CEO
--------------------------
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇.
--------------------------------
(Address)
▇▇▇▇ ▇▇▇▇, ▇▇. ▇▇▇▇▇
--------------------------------
Dated: 3/6/98
--------------------------
6
ATTACHMENT A
LIMITED EXCLUSION NOTIFICATION
This is to notify you in accordance with Section 2872 of the California
Labor Code that the foregoing Agreement between you and the Company does not
require you to assign or offer to assign to the Company any invention that you
developed entirely on your own time without using the Company's equipment,
supplies, facilities or trade secret information except for those inventions
that either:
1. Relate at the time of conception or reduction to practice of the
invention to the Company's business, or actual or demonstrably anticipated
research or development of the Company;
2. Result from any work performed by you for the Company.
To the extent a provision in the foregoing Agreement purports to
require you to assign an invention otherwise excluded from the preceding
paragraph, the provision is against the public policy of this state and is
unenforceable.
This limited exclusion does not apply to any patent or invention
covered by a contract between the Company and the United States or any of its
agencies requiring full title to such patent or invention to be in the United
States.
I acknowledge receipt of a copy of this notification.
By:
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
3/11/98
Date:
Witnessed by:
_________________________________________
(Printed Name of Representative)
7
ATTACHMENT B
TO: Molecular Devices Corporation
FROM: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
DATE: 3/11/98
SUBJECT: Previous Inventions
1. Except as listed in Section 2 below, the following is a complete list of all
inventions or improvements relevant to the subject matter of my employment by
Molecular Devices (the "Company") that have been made or conceived or first
reduced to practice by me alone or jointly with others prior to my engagement by
the Company:
: No inventions or improvements.
: See below:
__________
__________
__________
: Additional sheets attached.
2. Due to a prior confidentiality agreement, I cannot complete the disclosure
under Section 1 above with respect to inventions or improvements generally
listed below, the proprietary rights and duty of confidentiality with respect to
which I owe to the following party(ins):
Invention or Party(ies) Relationship
Improvement
1. -------------------------- ------------------- ------------------
2. -------------------------- ------------------- ------------------
3. -------------------------- ------------------- ------------------
8